7TH NOVICE MOOT COURT COMPETITION, 2019

MEMORANDUM ON BEHALF OF THE RESPONDENT

 7TH NOVICE MOOT COURT COMPETITION, 2019

TABLE OF CONTENTS

INDEX OF AUTHORITIES………..…………………………………………...ii

STATEMENT OF JURIDICTION……………………………………………...iii

STATEMENT OF FACTS………………………………………………………iv

STATEMENT OF ISSUES……………………………………………………....v

SUMMARY OF ARGUMENTS……………………………………………......vi

ARGUMENTS ADVANCED……………………………………………...….... 1
1. The birth of a still born baby from the womb of Vinaya was not a
Consequence negligence on the Respondent’s part…………………....... 1
A. Definition of Negligence………………………………….…...…….. 1
B. Elements of Negligence………………....…………................……… 1
1.1 How the element no. 2 is not fulfilled............................................... 1
1.1.1 Case laws and principles.......................................................... 2
1.2. How the element no.3 is not fulfilled ...................................

MEMORANDUM ON BEHALF OF THE RESPONDENT

 7TH NOVICE MOOT COURT COMPETITION, 2019

INDEX OF AUTHORITIES

MEMORANDUM ON BEHALF OF THE RESPONDENT

 7TH NOVICE MOOT COURT COMPETITION, 2019

LIST OF ABBREVIATIONS

MEMORANDUM ON BEHALF OF THE RESPONDENT

 7TH NOVICE MOOT COURT COMPETITION, 2019

STATEMENT OF JURISDICTION

MEMORANDUM ON BEHALF OF THE RESPONDENT

 7TH NOVICE MOOT COURT COMPETITION, 2019

STATEMENT OF FACTS

CRUCIAL INPUTS REGARDING THE RESPONDENT

John (the respondent), who works as a photographer for a leading company that
produces apparels for expecting mothers, has three sisters. One out of the three is a
gynecologist with two children. On the way to his office he passes by four different traffic
signals every day. On the first signal, he passes by a petrol bunk. The second signal is close
to a government hospital, however, it is on the opposite side of the road. The third signal is
close to a school and a college. The fourth, and the last one, has a super specialty hospital on
the same side of the road.

SEQUENCE OF EVENTS

1. One day, on the way to his office, as The Respondent was crossing the first signal, he
saw a pregnant lady who gotten into an accident,

MEMORANDUM ON BEHALF OF THE RESPONDENT

 7TH NOVICE MOOT COURT COMPETITION, 2019

STATEMENT OF ISSUES

1. Whether the birth of a still born baby from the womb of Vinaya (the claimant no. 1)
was a consequence of negligence on the part of John (the respondent)?

2. Whether John is liable pay compensation to the claimant no. 2 for the accident?

2.1 Whether John can claim the defence of necessity for jumping the yellow light?

3. Whether claimant no. 2 owes damages to John for the loss incurred to him as a
consequence of the accident?

MEMORANDUM ON BEHALF OF THE RESPONDENT

 7TH NOVICE MOOT COURT COMPETITION, 2019

SUMMARY OF ARGUMENTS

MEMORANDUM ON BEHALF OF THE RESPONDENT

 7TH NOVICE MOOT COURT COMPETITION, 2019

ARGUMENTS ADVANCED

1. THE BIRTH OF A STILL BORN BABY FROM THE WOMB OF VINAYA WAS NOT
A CONSEQUENCE OF NEGLIGENCE ON THE RESPONDENT’S PART.

The Respondent humbly submits before the Hon’ble Court the definition and the elements of
negligence as stated in Ratanlal & Dhirajlal’s The Law of Torts1. They are as follows:

A.) DEFINITION

Negligence is the breach of duty caused by the omission to do something which

a reasonable man, guided by those considerations which ordinarily regulate the
conduct of human affairs would do, or doing something which a prudent or
reasonable man would not do.

B.) ELEMENTS OF NEGLIGENCE

According to Winfield’s definition of negligence, “negligence as a tort is the

breach of a legal duty to take care which results in damage, undesired by the
defendant to the plaintiff”, there are three elements necessary for an action of
recovering damages against the defendant. They are:
1.) A legal duty to exercise due care on the part of the party
complained of towards the party complaining the former’s conduct
within the scope of the duty;
2.) Breach of the said duty;
3.) Consequential damage.

It is pertinent to mention here that each of these three elements must be fulfilled
for a legal claim for damages to rise against John, which is most definitely not
true for this case. In the following two points, the Respondent, would most
humbly like to bring to notice that the abovementioned element no. 2 and 3 have
not been fulfilled by John.

1.1 How the element no. 2 was not fulfilled:

 As it was mentioned before, in negligence the breach of a duty is caused by the

omission to do an act or doing an act which a reasonable or prudent man would not
do. John, from the very act of taking the lady with great caution towards his car
after she had been in an accident, till the very act of dropping her off to a hospital,
had been the epitome of care and compassion.

1
Ratanlal & Dhirajlal, The Law of Torts 496 (Akshay Sapre, 28th Edition, 2019)

MEMORANDUM ON BEHALF OF THE RESPONDENT

 7TH NOVICE MOOT COURT COMPETITION, 2019

The first instinct of John was to take the lady to his car to save her from further
injuries and to provide her with treatment. His second instinct was to contact his
sister who was the lady’s doctor. It was only after he had failed to get in touch with
his sister, that he gained the implied consent of the lady to take her to the hospital.
So far, his actions were not only that of a prudent man but also of a man of good
conscience and strong morals.

 The fact that john knew the lady from before and his knowledge about her case
being a tough one is noteworthy. With that being said, accompanied by the common
level of intellect and reasonability that any layman possesses, he rushed to the
nearest super specialty hospital. It was in good faith and with prudence that john, in
that moment of absolute rush, chaos and panic, came to the deduction that a
pregnant lady in her mid-forties who had just flown out of an auto, would need
special treatments than just the basic first aid that would be provided in a
government hospital.

He thought with foresight and compassion not just for the mother but for the baby
she was expecting as well and with that in his mind he came to the conclusion that
even though a government hospital might be able to provide first aid to the lady,
they might not be able to act on the spot in case the delivery of the lady was to be
preponed or any other such drastic step was to be taken. It is a layman’s common
belief that not many government hospitals are well-equipped to handle complicated
surgeries. Therefore, with good conscience, prudence and reasonability John took
the right decision by taking the lady to the super specialty hospital.

 Moreover, it is pertinent to mention that despite the panic, making sure of the lady
and her child’s safety was john’s first priority. This can be seen by referring to point
no. 3 of the subheading ‘Sequence of Events’ under the Statement of Facts. It is
mentioned that even though the lady lost consciousness, John stopped at the traffic
signal since it was red and ensured that the lady and her baby were not exposed to
the consequences of getting into another traffic accident. It is fair to keep in mind
that the Respondent’s professional commitments required him to be in a constant
state of interaction and communication with expecting mothers, also, he was a
brother to a gynecologist.

Therefore, he was aware that losing consciousness is a common symptom among

expecting mothers in situations of stress which acted as a catalyst in him
maintaining his sanity while dealing with such a complex situation. As he
approached the third traffic signal, on realizing that it was yellow and that the
traffic from the opposite side had not started moving, he saw it as an opportunity to
avoid any further delay in taking the lady to the hospital. It was out of necessity that
John instead of slowing down, kept moving to save the mother’s life. This can be
justified since necessity is an applicable defence in civil as well as criminal cases.
In such cases, necessity defends what it compels.

MEMORANDUM ON BEHALF OF THE RESPONDENT

 7TH NOVICE MOOT COURT COMPETITION, 2019

1.1.1 Case laws and principles:

It is pertinent to mention the Division Bench decision of High Court of Karnataka in the case
of M.N. Rajan And Ors. vs Konnali Khalid Haji2 in which the Court held that in a case based
on tort by negligence, it was imperative for the Court first to determine whether the defendant
was under a legal duty to take care and whether there was sufficient reason of proximity
between the defendant and plaintiff. In answering that question, the Court has to apply the
test of foresight of a reasonable person to examine whether the injury to the plaintiff was
reasonably foreseeable as a consequence of the defendant's acts of omission or commission.
In Southern Portland Cement Limited Vs. Cooper (1974) 1 ALL ER 87, the court declared
that in cases of tort by negligence the test applicable is the foresight of a reasonable man and
not the hindsight of the Court for it is easy to become wiser after the event.

 The proximity and the legal duty of care can be established by using the tripartite
test as mentioned in the case of Caparo Industries Plc v Dickman.

This test departs from Donoghue v Stevenson and the Wilberforce test laid down in Anns v
Merton London Borough Council which starts from the assumption that there is a duty of
care and that harm was foreseeable unless there is good reason to judge otherwise. Whereas
Caparo starts from the assumption no duty is owed unless the criteria of the three stage test
is satisfied. These criteria are: Foreseeability, Proximity and whether it is fair, just and
reasonable to impose such a duty.

a) Foreseeability

The respondent pleads that he could not have possibly foreseen that while performing
his moral duty of taking the lady to the hospital, he would get into an accident with
the Claimant no. 2. He was acting in good faith and in the process of trying to save the
lady and her to-be-born baby, his car got rammed into from behind. The Respondent,
despite the injury, quickly drove the lady to the hospital as soon as he could.

b) Proximity

2
M.N. Rajan v Konnali Khaid Haji

MEMORANDUM ON BEHALF OF THE RESPONDENT

 7TH NOVICE MOOT COURT COMPETITION, 2019

1.2. How the element no.3 was not fulfilled:

 The Respondent would humbly like to submit that the damage caused to the lady,
which was the death of her baby in her womb, was not a consequence of John’s
acts or omissions. Instead, it’s fair to keep in mind the sequence of events which
led to the death of the baby. They are as follows:
a) That the lady was a forty-three years old woman who had been going through an
IVF treatment. The complexity of her case was intense from the very beginning.
She had not been able to conceive for 7 years.
b) That the success rate of an IVF treatment goes on reducing as the age of the
patient increases. The average percentage of livebirths through an IVF treatment
for a woman above the age of 40 are lower than 15% all over the world.
c) That the lady was advised complete bed rest during her last months of
pregnancy, an advise which was not complied with. The percentage of livebirths
through an IVF after the age of 40 are as it is extremely low, on top of that no
proper precaution was taken by the lady to maintain the state of her and her
child’s wellness. Exposure to situations of stress, travel, pollution, exertion, etc.
have been proven to be a major factor in the birth of still born babies not just in
the case of an IVF (which comes with its own complexities) but also in the case
of traditional form of fertilization.
d) That the lady had already been in a major accident before she even got into the
car of the Respondent. The accident caused by the auto-driver could have been
easily fatal for the lady and for the baby. It was a consequence of John’s
compassion and aid that the lady was able to survive the accident.

The respondent would therefore like to lay emphasis, from the

abovementioned facts, on the innocence of John. It

MEMORANDUM ON BEHALF OF THE RESPONDENT

 7TH NOVICE MOOT COURT COMPETITION, 2019

2. JOHN IS NOT LIABLE TO PAY COMPENSATION TO THE CLAIMANT NO.2

FOR THE ACCIDENT.

In case of collision between two vehicles in a motor vehicle accident, the party
claiming damages is under the obligation to prove negligence on the part of the
defendant, which in this case is not possible due to the following reasons:

 It must be noted that The Respondent crossed the traffic signal while the light was
yellow, whereas The Claimant no.2 did so when the traffic signal had already
turned red.
The expected response to the traffic signals turning yellow (amber) and red are
mentioned below:
a.) Yellow is to clear the road as the signal is changing from green to red.
However, If, by mistake, the driver gets caught in the amber signal in the
middle of a large road crossing, he/she is expected to continue with care.
b.) Red means to stop well before the stop line and not to crowd the
intersection.

 This shows that the Claimant no. 2, himself, was driving in a rash and negligent
manner. By law, he was supposed to stop the red light, however, showing no
respect towards the law, he drove at a high speed and rammed into the
Respondent’s car from behind. By the very impact, we can establish two things.
First, the claimant was driving at a speed which was not only more than that of the
Respondent but was also rash and unlawful in nature since he was at a red light.
Second, since the Claimant no.2 rammed from behind, it becomes certain that he
saw the respondent’s car in front of him, yet he drove at a high speed and drove
into his car. On the basis of these two points we can, beyond any reasonable
doubt, conclude that the damage caused to both, the Respondent as well as the
Claimant no. 2, was a consequence of the rash and negligent driving of the
Claimant no. 2 himself.

Case laws and principles

MEMORANDUM ON BEHALF OF THE RESPONDENT

 7TH NOVICE MOOT COURT COMPETITION, 2019

2.1 John can claim the defence of necessity for jumping the yellow light.

 The only motive behind John’s decision to skip the yellow light was to save the
life of the lady and her baby. It was a situation of grave necessity since the lady
had already lost her consciousness. On seeing that the light was yellow and that
the traffic had not started moving, John skipped the light in order to reach to the
hospital promptly.
 The Respondent would like to plead that there was no violation of law. This
assertion can be backed by the legal maxim salus populi sprema lex which
translates r

MEMORANDUM ON BEHALF OF THE RESPONDENT